What happened to MacKay and Cheney was probably the worst example of second-hand smoke migration ever to reach a Canadian courtroom.

In June of last year, the pair experienced the noxious smell of cigar smoke infiltrating their Yorkville-area home. The smoke was so bad that when their insurance company sent an adjuster, he concluded that the unit was uninhabitable and moved them into a hotel at the insurer’s expense. Almost a year later, they are still there.

Over a period of 10 months following numerous complaints to the condominium management and board, eight different consulting and engineering firms were hired to conduct studies to assess how the smoke was travelling from the unit above, and how the problem could be solved.

Each consulting firm made various suggestions as to stopping the travelling cigar smoke, and some work was undertaken. At one point a “smoke bomb” test was conducted, using harmless but visible smoke to monitor the migration between the units

Last December, not happy with the progress of the investigations, the owners sued the condominium corporation and its individual directors seeking a declaration that they had breached their duty to repair and maintain the building’s common elements, as well as an injunction requiring the problem to be remedied, and damages.

This past March, the condominium corporation retained its eighth consultant, Pinchin Environmental Ltd. Phillip Brearton, an engineer with Pinchin, concluded that the problem did not emanate from the four fan coil pipe penetrations sealed by a previous consultant.

He did, however, detect air gaps in the vicinity of the master and guest bathroom drain pipes of the upstairs unit.

Sealant was applied and the opinion of the Pinchin firm was that the problem had finally been solved.

The smoke, it seems, was travelling through openings in the concrete floor slabs that allow connections for common services such as water supply lines, drains and vents. Those openings also constituted serious provincial Fire Code violations.

The case came to a two-day hearing last April 28 and 30. In his decision released earlier this month, Justice Graeme Mew wrote, “The question of whether the condominium corporation is in breach of its maintenance and repair obligations engages a discussion of the adequacy of the corporation’s responses to the owners’ complaints.

“Not surprisingly, context is everything. The nature of the problem at the owners’ unit was such that they felt unable to continue to live there. They were supported in this regard by their insurer.”

The judge also wrote that, “at times, duelling correspondence between the lawyers for the parties may (have) distracted efforts to effectively deal with the smoke migration issue.”

With the problem virtually resolved by the end of April, the judge suggested that there was an “arguable case” for conducting further repeated testing to ensure that the problem would not recur. But he made no order to perform further remediation in light of the Pinchin findings.

I estimate the total legal expenses for both sides in this unfortunate case at close to $100,000 — plus all the consultants’ costs.

As well, the insurers are on the hook for 10 months in a hotel and a complete “scrub” of the unit.

Justice Mew ordered that the condominium corporation pay costs to the owners because it had not been “compliant with its obligations” under the Condominium Act.

Condominium boards faced with similar problems in future are now on notice that they must act without undue delay and not ignore smoke complaints. Boards cannot, as happened in this case, allow a “negative attitude towards the owners” to colour their decision making.

If boards do not act promptly and effectively to respond to tobacco smoke complaints, they run the risk of a court action and having to pay the costs of the affected unit owner.

Bob Aaron is a Toronto real estate lawyer. He can be reached at bob@aaron.ca[2].

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